Citation Nr: 9813337
Decision Date: 04/29/98 Archive Date: 05/08/98
DOCKET NO. 96-35 393 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Louisville,
Kentucky
THE ISSUES
1. Entitlement to service connection for a psychiatric
disability, including post-traumatic stress disorder, and a
seizure disorder.
2. Whether the character of the veteran's discharge from
service from the period from July 3, 1984, to May 2, 1986, is
a bar to Department of Veterans Affairs (VA) benefits for
this period of service, except as to health care for service
connected disabilities.
REPRESENTATION
Appellant represented by: Alvin D. Wax, Attorney
ATTORNEY FOR THE BOARD
Neil Reiter, Counsel
INTRODUCTION
The veteran served on active duty from June 1981 to July 2,
1984, and from July 3, 1984, to May 2, 1986. The veteran was
granted an honorable discharge at the termination of his
three-year enlistment on July 2, 1984, and the nature and
character of his discharge from service for the period from
June 1981 to July 2, 1984, is not in question.
In an Administrative Decision of December 1994 the regional
office (RO) determined that the veteran had reenlisted for a
period of four years on July 3, 1984, that the service
discharged him on May 2, 1986, with an other than honorable
discharge, that such discharge was the result of willful and
persistent misconduct, and that the character of discharge
from the second period of service is a bar to benefits based
on the second period of service, except as to health care for
service connected disability.
In a rating action of December 1994 the RO denied entitlement
to service connection for a heart condition, residuals of
heat stroke and a back injury. The veteran did not disagree
with those findings and that rating action has become final.
The RO has determined that the veteran has appealed the
decision concerning the character of his discharge for the
second period of service. The veteran has also appealed May
and October 1995 regional office determinations that he is
not entitled to service connection for a psychiatric
disorder, including post-traumatic stress disorder, and a
seizure disorder.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran maintains, in essence, that he has depression and
post-traumatic stress disorder which is directly related to
the first period of service when he participated in actions
in Lebanon and Grenada. He contends that he has recurring
nightmares relating to the stressful events which occurred
during this period of service. He claims that he currently
has a seizure disorder, which began in service in 1981. He
maintains that he hit his head on a bunk in the military
barracks in 1981, had a seizure, and has had seizures since
that time. Finally, he contends that the problems he had
during the second period of service were minor in nature, and
were caused by the depression and post-traumatic stress
disorder which began during his first period of service.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims file.
Based on its review of the relevant evidence in this matter,
and for the following reasons and bases, it is the decision
of the Board that the veteran's discharge from his second
period of service in May 1986 was issued under dishonorable
conditions and is a bar to VA benefits for this period of
service, except for health care.
Based on its review of the relevant evidence in this matter,
and for the following reasons and bases, it is the further
decision of the Board that the veteran has not met the
initial burden of submitting evidence sufficient to justify a
belief by a fair and impartial individual that the claims for
entitlement to service connection for a psychiatric
disability, including post-traumatic stress disorder, and for
a seizure disorder, are well grounded.
FINDINGS OF FACT
1. The regional office has obtained all relevant evidence
necessary for an equitable disposition of the veteran's
claims.
2. The veteran participated in operations in Beirut,
Lebanon, in September 1983, in operations for the liberation
of the Islands of Grenada and Carriacou in November 1983, and
in operations in Beirut in February 1984.
3. The service medical records are negative for any
complaints, findings or diagnoses indicative of an acquired
psychiatric disability, including post-traumatic stress
disorder, or of a seizure disorder, during the veteran's two
periods of service.
4. A seizure disorder and a psychiatric disorder, diagnosed
as major depression, were found several years after discharge
from service, but the medical evidence of record fails to
establish that such disabilities were etiologically related
to service, to any incident in service or to treatment for
any disability which occurred in service.
5. A post-traumatic stress disorder diagnosis after the
veteran's discharge from service has not been established.
6. The veteran received nonjudicial punishment for being
absent without leave for approximately 9 days in
January 1985, nonjudicial punishment for striking another
soldier in April 1985, nonjudicial punishment for failure to
be at his appointed place of duty in February 1986, and
nonjudicial punishment for disobeying verbal orders and
breaking restrictions in March 1986.
7. A psychiatric examination in September 1985 yielded a
pertinent diagnosis of antisocial personality traits, with no
evidence of psychosis or organic brain disease. A
psychological consultation in January 1986 indicated built up
rage towards the Marine Corps. The diagnostic interview and
psychological testing indicated that he was not insane at the
time he committed the various offenses.
8. The veteran was discharged from his second period of
service in May 1986 because of willful and persistent acts of
misconduct.
CONCLUSIONS OF LAW
1. The veteran's offenses during his second period of
service constituted willful and persistent misconduct and he
was not insane at the time of committing these offenses.
38 U.S.C.A. §§ 101, 5303, 5107 (West 1991); 38 C.F.R.
§§ 3.12, 3.354 (1997).
2. The veteran has not submitted evidence of well-grounded
claims for entitlement to service connection for a
psychiatric disorder, including post-traumatic stress
disorder, or for a seizure disorder. 38 U.S.C.A. §§ 1101,
1110, 1112, 1113, 1137, 5107 (West 1991); 38 C.F.R. §§ 3.304,
3.307, 3039, 3.310 (1997).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Background
The service records show that the veteran participated in
operations in Beirut, Lebanon, in September 1983, in
operations for the liberation of Grenada in November 1983,
and in operations in Beirut, Lebanon, again, in
February 1984. He received the Combat Action Ribbon, Marine
Corps Expeditionary Medal, and the Armed Forces Expeditionary
Medal during his first period of service.
The service records show that the veteran was hospitalized in
February and March 1982 for tonsillitis, with a
tonsillectomy, and his medical history failed to indicate any
complaints, findings or diagnoses indicative of an acquired
psychiatric disorder, post-traumatic stress disorder, or a
seizure disorder. It was noted that there was a questionable
history of some heart problem of unknown type. On
examination for discharge from service in May 1984, the
veteran's history indicated that he had been hospitalized for
a syncopal episode in 1981 which was felt to be secondary to
bradyarrhythmia, with no recurrence. Psychiatric evaluation
was normal, and there were no indications of a seizure
disorder.
The service medical records contain an undated copy of a
medical record showing plans to admit the veteran for
telemetry monitoring for a period not less than 48 hours for
routine lab work, thyroid function studies,
electroencephalogram, and brain scan. The initial impression
was syncopal episodes, recurrent, rule out cardiac
dysrhythmia, seizure disorder; abnormal neurological
examination with possible left-sided lesion; atrophy of the
optic nerve possibly secondary to possible left-sided lesion.
The veteran was referred for psychiatric evaluation in
September 1985 because of repeated complaints of back pain
during the past year. It was noted that he had a 10-month
history of recurrent back pain, with few objective symptoms
noted. His history indicated early adolescent anti-social
conduct and behavior. He indicated that he had no specific
emotional problems. On mental status examination his thought
processes were firm, logical, and goal-directed. There was
no thought insertion or thought broadcasting, and affect was
appropriate. There were no vegetative signs of depression.
It was noted that psychological testing was invalid since he
had presented himself in a guarded and positive light. The
interpretation did reveal a disregard for social customs and
an inability to profit from negative experience. He was
overly active, restless, impulsive and excitable. Aggressive
outbursts were not uncommon. It was noted that he was
dissatisfied with what he was getting out of life, and that
he might appear to be despondent. The diagnoses included
chronic low back pain and a personality disorder.
The veteran was referred to the psychology clinic in
January 1986. On mental status examination, his evaluation
revealed no evidence of psychosis or organic brain disease.
He was oriented in all spheres, was aware of right or wrong,
and was able to adhere to the right. He denied any abuse of
drugs or alcohol, or previous psychiatric hospitalization or
care. It was noted that he continued to complain of chronic
low back pain, and of continuous command level harassment
against him, in spite of his efforts to continue working with
the pain. He harbored considerable resentment and rage
towards the Marine Corps. He was in full agreement that a
discharge from the Marine Corps would be in the best interest
of the Corps, as well as himself. Diagnostic interview and
psychological testing revealed a personality disorder, with
aggressive, impulsive behavior in an angry individual. The
diagnoses were chronic low back pain and passive aggressive
personality disorder, with indications of psychological
features affecting the physical condition.
On physical examination for discharge from service in
April 1986, it was indicated that there was a plan to
evaluate the veteran for cardiac monitoring. On clinical
evaluation, psychiatric evaluation was normal, and clinical
evaluation showed no abnormality indicative of seizures. The
service medical records for both periods of service are
otherwise negative for any complaints, findings or diagnoses
indicative of an acquired psychiatric disorder, a seizure
disorder, or post-traumatic stress disorder.
The service records show that the veteran received
nonjudicial punishment for being absent without leave from
his appointed place of duty in March 1982, that he was
counseled regarding his conduct during the performance of his
regular duties in July 1983, that he was counseled for poor
performance and a lackadaisical attitude in January 1984, and
that he was counseled on improvement of his attitude and
performance in March 1984.
The service records also indicate that he received
nonjudicial punishment for being absent without leave from
January 3, 1985, to January 12, 1985, that he received
nonjudicial punishment for striking another Marine in
May 1985, that he received nonjudicial punishment for failure
to be at his appointed place of duty in February 1986, and
that he received nonjudicial punishment for two counts of
disobeying verbal orders not to drive his car while on
restriction, and breaking restriction.
Subsequently, he appeared before a Board which considered
discharging him because of a pattern of involvement of a
discreditable nature with military authorities as evidenced
by five nonjudicial proceedings. It was determined that he
should be discharged from service. It was further determined
that his conduct during the earlier enlistment from June 1981
to July 1984 could not be considered in determining whether
his acts merited discharge from his second period of service.
Subsequently, the service department indicated that this
discharge was under other than honorable conditions.
The veteran was hospitalized at the VA hospital in May 1993
with a history of a seizure disorder, first diagnosed after
head trauma in 1981 when he struck his head on his bunk. He
indicated that he was treated with Dilantin until 1988, and
that medication was discontinued in 1990. He reported doing
well until he had another accident a week previously when
some boxes fell on his head. He reported that he then did
"pass out." He gave a confused history of having a
myocardial infarction at age 18 (he was born in
September 1963). Physical and clinical studies in the
hospital, including a lumbar puncture, resulted in the
diagnosis of viral meningitis.
The veteran was hospitalized in April and May 1994 at a VA
medical center after a suicide attempt. He reported that he
had been depressed intermittently since he joined the Marine
Corps in 1980, with the precipitating current stressors
including loss of a job, loss of a friend in a Beirut,
Lebanon, incident, and problems with the legal system. It
was noted that the veteran had a history of a seizure
disorder since 1981 after hitting his head on a bunk. The
veteran was begun on Nortriptyline, an anti-depressive
therapy. The diagnoses were major depression, mixed
personality disorder, and seizure disorder.
Private medical records were received showing the veteran's
admission to Humana Hospital University, Louisville,
Kentucky, in November 1984, after a motor vehicle accident,
with complaints of low back pain radiating into the right
leg. A past medical history was unremarkable. X-rays of the
lumbar spine revealed an L5 transverse process fracture on
the right. He was transferred to an Army Hospital.
The medical records from Humana Hospital further show the
veteran was seen in January 1988 for an apparent seizure. He
noted a history of having a seizure in "boot camp," with no
medical treatment. He appeared very angry. Dilantin was
prescribed. He was again seen in September 1989 complaining
of blurred vision and headaches after being hit in the head
at work. He provided a history of having had a head injury
three weeks previously. There was no seizure activity and no
incontinence. Neurological examination was essentially
normal, aside from decreased sensation in the right upper
extremity. In April 1993, he was treated for seizure
activity after falling and hitting his head. He reported
that he had stopped the Dilantin about one year previously.
In November 1992, he was seen for a hysterical episode.
Psychiatric evaluation showed no delusions, hallucinations,
or problems with cognitive functioning. He stated that he
was frustrated and became angry. The diagnostic assessment
was deferred. There was a notation to rule out post-
traumatic stress disorder.
VA outpatient treatment reports from 1991 through 1995 are of
record. In 1993 and 1994 he received treatment for seizures,
which he stated had been present since 1981. In June 1994 he
dated his seizure activity to a motor vehicle accident which
occurred in 1984. After the hospitalization in April or
May 1994, the outpatient treatment records showed that the
veteran joined a transition group, with a decrease in his
depression symptoms. The diagnostic assessment in
August 1994 was major depression, mixed personality disorder,
and seizure disorder. He did complain of nightmares about
various things, including his service in Beirut, Lebanon and
Grenada.
In early 1995, VA outpatient treatment reports show that the
veteran was scheduled for a post-traumatic stress assessment
and intake interview. In April 1995, the mental health
clinic intake interview showed complaints of anger,
nightmares, and flashbacks. It was noted that he had had
problems with authorities and with fighting since childhood,
and that there were incarcerations for various offenses. The
diagnostic assessment was deferred, to rule out post-
traumatic stress disorder.
On a VA examination in July 1995, the veteran's history was
reviewed. He noted that his symptoms included decreased
sleep, appetite, and energy, problems with law enforcement
authorities, with a history of multiple arrests, and
depression. On examination, he did not display any signs of
emotional tension, anger, irritability, or hostility. The
veteran spoke at length about his feelings and the events of
his life. Cognitive functioning was intact. The diagnosis
was antisocial behavior, history of depression, and
personality disorder. It was noted that the personality and
characterological pathology contributed significantly to the
veteran's current thoughts, actions, and behavior. It was
further noted that personality disorders arose in childhood
and adolescence, and that much of the symptomatology was
consistent with his personality pathology. The examiner
expressed the opinion that the veteran did not meet the
diagnostic criteria for post-traumatic stress disorder. It
was further noted that the mental health clinic had given the
veteran a diagnosis of mild dysthymia and mixed personality
disorder. Finally, the examiner indicated that there was no
connection between his psychiatric and personality pathology
and any incident of military service.
A VA neurological examination in July 1995 reviewed the
veteran's history of seizures. The veteran indicated that he
had trauma in 1980, and seizure activity since that time. He
reported that the trauma in 1980 included trauma to the head,
a loss of consciousness, urinary incontinence, and tonoclonic
seizure activity. Neurological examination resulted in the
diagnosis of seizure disorder, probably post-traumatic
stress, with a normal neurological examination. An
electroencephalogram was interpreted as normal.
II. Analysis
VA benefits are not payable based on a period of service
unless such period of service was terminated by discharge or
release under conditions other than dishonorable, or it is
found that the person was insane at the time of committing
the offense, or offenses causing such discharge. 38 C.F.R.
§ 3.12(a)(d). A discharge or release because of willful and
persistent misconduct is considered to have been issued under
dishonorable conditions. This includes a discharge under
other than honorable conditions, if it is determined that it
was issued because of willful and persistent misconduct. A
discharge because of a minor offense will not, however, be
considered willful and persistent misconduct if service was
otherwise honest, faithful and meritorious. 38 C.F.R.
§ 3.12(d)(4).
An insane person is one who, while not mentally defective or
constitutionally psychopathic, except when a psychosis has
been grafted upon such basic condition, exhibits, due to
disease, a more or less prolonged deviation from his normal
method of behavior; or who interferes with the peace of
society; or who has so departed (become antisocial) from the
accepted standards of the community to which by birth and
education he belongs as to lack the adaptability to make
further adjustment to the social customs of the community in
which he resides. 38 C.F.R. § 3.354.
In this case, the veteran's first period of service between
June 1981 and July 2, 1984, is considered a separate period
of service for which the veteran received a discharge under
honorable conditions. The character of the veteran's
discharge from this period of service is not in dispute.
Further, it is noted that the incidents of misconduct which
occurred during his first period of service were not
considered in determining the character of the veteran's
discharge from his second period of service.
The veteran reenlisted for a second period of service on
July 3, 1984. Soon thereafter, he received the first of a
series of nonjudicial punishments for acts of misconduct.
Specifically, in January 1985, only six months after entering
the second period of service, he went absent without leave
for approximately 9 days and he received nonjudicial
punishment for this period of absence without leave. In
May 1985, he received another nonjudicial punishment for
striking another Marine. Then, in February 1986, he received
nonjudicial punishment for failure to be at his appointed
place of duty. Finally, in March 1986, he received
nonjudicial punishment for two counts of disobeying verbal
orders and breaking restriction.
The various nonjudicial punishments constituted punishment
for sustained acts of misconduct which were willful and
persistent in nature. Further, psychological and psychiatric
interviews in late 1985 and early 1986 showed that the
veteran was angry with the Marine Corps, and that he believed
separation from service was for the good of both the service
and for him. The psychiatric examinations in service failed
to show that he was insane at the time of committing these
acts, and failed to show the presence of an acquired
psychiatric disorder. It was noted that he had a long
history of anger and fighting which dated to his adolescent
years, and it is not shown that his behavior pattern in the
second period of service deviated from his normal method of
behavior. The veteran's repetitious and persistent offenses
during the second period of service are not considered minor
in nature, but are considered disruptive to continued
service, and represent a pattern of conduct which is willful
and persistent in nature. As a result, the veteran was
discharged from his second period of service under
dishonorable conditions, barring entitlement to benefits
based on the second period of service, aside from health
care.
The threshold question that must be resolved with regard to a
claim for service connection is whether the veteran has
presented evidence of a well-grounded claim. 38 U.S.C.A.
§ 5107; Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). A
well-grounded claim is a plausible claim which is meritorious
on its own or capable of substantiation. Murphy v.
Derwinski, supra. An allegation that a disorder is service
connected is not sufficient; the veteran must submit evidence
in support of claim that would justify a belief by a fair and
impartial individual that the claim is plausible.
Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). The
quality and quantity of the evidence required to meet the
statutory burden of necessity will depend upon the issue
presented by the claim. Grottveit v. Brown, 5 Vet. App. 91-
93 (1993).
A determination of service connection requires a finding of
the existence of the current disability and a determination
of the relationship between that disability and an injury or
disease incurred in service. Watson v. Brown, 4 Vet. App.
309, 314 (1993). In order for a claim of service connection
to be well grounded, there must be competent evidence of a
current disability (a medical diagnosis); of incurrence or
aggravation of a disease or injury in service (lay or medical
evidence); and of a nexus between the inservice injury or
disease and the current disability (medical evidence).
Caluza v. Brown, 7 Vet. App. 498 (1995).
Service connection for post-traumatic stress disorder
requires medical evidence establishing a clear diagnosis of
this condition, credible supporting evidence that the claimed
inservice stressor actually occurred, and a link, established
by medical evidence between current symptomatology and the
claimed inservice stressor. West v. Brown, 7 Vet. App. 70
(1994).
In this case, the service medical record for the veteran's
first period of service is negative for any complaints,
findings, or diagnoses of an acquired psychiatric disorder,
including post-traumatic stress disorder. It is noted that
disability resulting from the second period of service may
not be considered for service connection for compensation
purposes, because the discharge from the second period of
service was under dishonorable conditions. Moreover, the
service medical records for the second period of service fail
to show the presence of an acquired psychiatric disorder
(aside from a personality disorder for which compensation
benefits may not be granted, 38 C.F.R. § 3.303(c)). In fact,
post-traumatic stress disorder has not been diagnosed after
service by either private medical sources or by the VA.
While the veteran has had complaints of nightmares about his
service, a mental health clinic and a VA examination have
specifically concluded that the veteran does not have post-
traumatic stress disorder. Without medical evidence
establishing a current diagnosis of post-traumatic stress
disorder, the veteran's claim for service connection for
post-traumatic stress disorder is not well grounded.
The veteran does have a diagnosis of major depression. The
service medical records for both periods of service again
fail to demonstrate the presence of an acquired psychiatric
disorder during service. The first manifestations of the
veteran's major depression occurred several years after
discharge from service, and there is no medical evidence or
medical opinion to establish that the major depression shown
in the 1990's was associated in any way with the veteran's
service. In fact, the VA examiner in 1995 indicated that
there was no connection between the veteran's psychiatric and
personality pathology and any incident of military service.
Thus, there is no medical evidence showing a nexus between
the major depression and the veteran's service. The claim
for service connection for an acquired psychiatric disorder,
major depression, is not well grounded.
The service medical records for the veteran's first period of
service are negative for any complaints, findings, or
diagnoses indicative of a seizure disorder. The veteran was
hospitalized in 1982, and there was no mention of a medical
history of seizures or head trauma. On examination for
discharge from service in May 1984, there is a history of one
syncopal episode in 1980 which was felt to be secondary to
bradyarrhythmia. It was noted that there was no recurrence.
Again, while the second period of service cannot be
considered for service connection because of the character of
the discharge from service, it is noted that such service
medical records are also negative for any complaints,
findings or a diagnoses indicative of a seizure disorder.
There is one undated service medical record indicating
recurrent syncopal episodes, with an initial impression to
rule out cardiac dysarrhythmia and a seizure disorder, but it
is not clear whether this relates to the syncopal episode in
1981. In any event, the physical examination for discharge
from service on May 1984 and for discharge from service in
April 1986 fails to show any complaints of, or history of, a
seizure disorder, with clinical evaluations being normal.
The veteran has indicated on various examinations after
service that he relates his seizure activity to trauma which
occurred during service, although at times he related it to
trauma which occurred in 1981 and at other times to trauma
which occurred in his second period of service. In any
event, the veteran's seizures first occurred several years
after discharge from service, and cannot be presumed to have
been incurred in service. While the veteran has provided a
history that he had seizures in service and relates his
current seizures to trauma which occurred in service, it is
noted that the veteran's history as related to physicians
currently need not be given probative value in the face of
contemporaneous medical records to the contrary. In fact,
the contemporaneous medical records fail to show that the
veteran had seizures in either period of service. The Board
therefore finds that there is lack of credibility to the
veteran's history provided to medical professionals after
service relating his current seizure disorder to seizures
which occurred during service. In addition, there is no
medical evidence or medical opinion which links his current
seizures to any incident which occurred in service. Where
the determinative issue involves medical causation, competent
medical evidence to that effect is required. Grottveit v.
Brown, supra. Accordingly, the Board concludes that the
claim for service connection for seizures is not well
grounded.
ORDER
The appellant was discharged from his second period of
service under dishonorable conditions. The appeal, as to
this issue, is denied.
The issues of entitlement to service connection for a seizure
disorder and for an acquired psychiatric disorder, including
post-traumatic stress disorder, are not well grounded. These
issues are also denied.
ROBERT D. PHILIPP
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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